Gujarat High Court
Rashtriya Mazdoor Union vs Petrofiles Co-Op Society on 25 November, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1855 of 2001
With
R/SPECIAL CIVIL APPLICATION NO. 3105 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RASHTRIYA MAZDOOR UNION
Versus
PETROFILES CO-OP SOCIETY & 1 other(s)
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Appearance:
MR RAJESH P MANKAD(2637) for the Petitioner(s) No. 1
mr shaliROHAN LAVKUMAR(9248) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 25/11/2022
ORAL JUDGMENT
1. The petitioner of Special Civil Application No.3105 of 2002 challenges the legality and validity of award dated 12 th March 1999 passed by the Industrial Tribunal, Vadodara in Reference [IT] No.26 of 92, whereby the Industrial Tribunal has directed the petitioner society to regularize and make Page 1 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 permanent the concerned workmen specified in the Schedule contained in the award itself w.e.f. 1/1/1996 and to grant all consequential benefits as a result of their regularization as permanent employees.
2. The petitioner No.1 is a Cooperative Society registered and the petitioner No.2 is a shareholder of the petitioner No.1 who was vitally interested in the management and affairs of the petitioner No.1 society at the material point of time.
2.1 The respondent is an Association which represented the workers employed in petitioner No.1 society and, at his instance, the dispute concerning the regularization of, in all 160 workers was espoused, which came to be referred by the appropriate government before the Industrial Tribunal, Vadodara, and the same came to be culminated into a Reference [IT] No.26/92.
2.2 The respondent union raised a demand with regard to regularization as permanent employees of in all 160 workers who were engaged by the contractors in the petitioner Society.
2.3 The respondent - union in support of its case filed a statement of claim at exh.5 of the record setting out various contentions.
2.4 The petitioner society submitted a detailed written statement opposing the reliefs as prayed for in the statement of claims filed by the respondent- union.
Page 2 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 2.5 The Tribunal has allowed the reference in favour of the concerned workers by directing the petitioner society to grant all consequential benefits as a result of regularization of the concerned workers as permanent employees w.e.f. 1/1/1996 and passed the impugned award dated 12 th March 1999. Hence, present petition is filed by the petitioner.
3. So far as Special Civil Application No.1855 of 2001 is concerned, it is filed by the petitioner against the action of the respondents of refusing to treat the workmen as regular and permanent workmen despited the award of the Tribunal and consequently, refusing to extend the benefit of voluntary separation scheme offered by the respondents to other regular and permanent workmen employed by the respondent.
3.1 The petitioner is a registered trade union and it has made demand for regularization of the workmen named in the listed annexed with the petition. The petitioner submits that all the workmen named in the list have been working for several years, without any break and are all paid on monthly basis as per the Minimum Wages Act. The petitioner further states that the workmen have been engaged in regular and permanent nature of work which was an integral part of the Establishment. The petitioner also states that the Industrial Tribunal, after considering all the evidence produced before it, was pleased to make the final award on 12 th June, 1999. By the said award, the Tribunal was pleased to declare that all the concerned workmen were to be treated as permanent workmen with Page 3 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 effect from 1996 and consequently, paid all benefits as paid to the similarly placed permanent workmen of the establishment. The petitioner also states that the respondent Petrofils is a public undertaking with majority of shares held by the Central Government and is an instrumentality of the State within the meaning of Article 226 of the Constitution of India. As a model employer, the respondent was expected to immediately comply with the award and start making payment and regular salaries and other allowances to the concerned workmen by treating them as permanent workmen as directed by the Tribunal. Unfortunately, however, the respondent has not been complying with the award and has not been paying the regular wages as paid to the similar other workmen and the arrears of the salary had also not been paid. The petitioner also states that while in the original reference 160 employees were employed, several of them have been discontinued and 53 workmen named in Annexure -I continued to be on the roll of the respondent company. The petitioner further states that in the meantime, the respondent have taken the decision to close down their activities, though as per the information of the petitioner, the respondent has not taken any permission to close down the establishment, as required under Section 25 (O) of the Industrial Disputes Act, as they employed more than 100 workmen. The petitioner states that the respondent has in fact put up a notice in the notice board declaring a Voluntary Separation Scheme and has stated that the last date of giving option would be 13/3/2001. The petitioner submits that the concerned workmen have been told that even if some of them wants to exercise the option, the offer was not open to the Page 4 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 concerned workmen. Under the aforesaid facts and circumstances, the petitioner has filed present petition.
4. Heard learned Senior Advocate Mr.Shalin Mehta appearing with Mr.Rohan Lavkumar for the petitioner of Special Civil Application No.3105 of 2002 and learned advocate Mr.Rajesh Mankad for the petitioner of Special Civil Application No.1855 of 2001.
5. Mr.Shalin Mehta, learned Senior Counsel appearing for the petitioner of Special Civil Application No.3105 of 2002 submitted that the findings and conclusions arrived at by the learned Judge in the impugned award while granting above referred reliefs concerning regularization w.e.f. 1/1/1996, learned Judge has miserably failed in not appreciating the vital legal contentions raised by the petitioner society that the dispute raised by the respondent Union was not an industrial dispute as the concerned workers were not the employees engaged by the petitioner society since they were engaged by the contractor called Land Losers' Labour Supply Cooperative Society in connection with the execution of contractual terms and conditions. He also submitted that as the dispute raised by the respondent Union is not an industrial dispute u/s 2 [k] of the Industrial Disputes Act, 1947, learned Judge had no jurisdiction to entertain the same. He also submitted that another dispute concerning the same demand / relief as was already pending before Labour Court being Reference (LCV) No.466 of 1991, and therefore, learned Judge ought not to have entertained parallel proceedings at the instance of the respondent union for and on behalf of the same set of workers.
Page 5 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 5.1 Learned Senior Counsel, Mr.Mehta further submitted that learned labour Judge has materially ignored the reality that concerned workers were not the employees engaged by the petitioner society, but they were engaged by the above referred contractor in execution of the contractual terms and conditions. He also submitted that some workmen, who were engaged in the petitioner society, were later on confirmed only after following the requisite procedure of selection, interview etc. considering required qualifications in connection with the work. He also submitted that grant of relief of regularization was guided by only one aspect that the concerned workers were doing a similar nature of job as compared to the regular and permanent employees, however, merely because the nature of activities of the regular and permanent employees of the principal employer are similar to that of the contract labourers, the same would not make the contract labourers eligible to claim regularization. He also submitted that when principal employer has given a contract to the contractor, the contractor is expected to carry out the terms and conditions of the contract as per the requirement and if inspection is made by the officials of the principal employer to achieve such norms as per the contract, the same cannot be termed as supervision or the control over the work of the contract labourers. He further submitted that principle laid down by the Hon'ble Supreme Court concerning the concept of 'equal pay for equal work' cannot be made applicable in the present case.
5.2 Learned Senior Counsel, Mr.Shalin Mehta has also submitted that the petitioner-society is a Central Government Page 6 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 Undertaking and, therefore, the Central Government would be appropriate Government for making any reference to the Labour Court. He has submitted that, in the present case, no reference has been made by the Central Government and reference was made by the State, which is not tenable in the eyes of law. Mr.Mehta also submitted that if there is waiver or consent, it has no value in the eyes of law, when the reference itself is illegal as it was not made by the Central Government. He has relied upon following decisions in support of his submissions:-
(i) Regional Provident Fund Commissioner v.
Workmen, represented by Secretary, Karnataka Provident Fund Employees Union and Another reported in 1984 (Supp) SCC 418, wherein it is held as under:-
"4. Under Sec. 10 of the Act, where the appropriate Government is of opinion that any industrial dispute exists or apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with or relevant to the dispute whether it relates to any matter specified, in the Second Schedule or the Third Schedule to the Act, to a Tribunal for adjudication. Section 2(a) of the Act defines the expression 'appropriate Government' as in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or by the industries specified in clause (i) of Section 2(a) of the Act, the Central Government and in relation to any Page 7 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 other industrial dispute, the State Government. It may be stated here that the organisation under the Provident Funds Act was not one of the industries specified in Sec. 2(a)(i) of the act -when the reference was made in this case. The contention of the management is that the industry in question falls under Section 2(a)(i) of the Act as it is an industry carried on under the authority of the Central Government and hence the Central Government alone can act as the appropriate Government in relation to a dispute concerning it.
...........
9. Having regard to the various provisions of the Provident Funds Act and the nature of the business carried on by the Central Board, the State Board, the Regional Committee and the Regional Provident Commissioner, we are of the view that the Division Bench of the High Court was not right in holding that the State Government was the appropriate Govt. under Section 2(a) of the Act in the matter of industrial disputes arising between the management and the workmen of the Regional Provident FundForganisation. .............."
(ii) H.P.Housing Board v. Om Pal and Others reported in (1997) 1 SCC 269. In the aforesaid decision, the claim of the workers in their application before the Tribunal was that the termination of their services was illegal. The same was refuted by the Housing Board. In these facts, it was held by the Page 8 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 Honourable Apex Court that without holding that termination of services of the respondent-employees as invalid, they being continued in service, the Tribunal erred in giving directions regarding regularization and payment of enhanced wages to the respondents-workmen.
(iii) Ramchandra and Others v. Additional District Magistrate and Others reported in 1988 (1) SCC 183. In the facts of that case, the services of some workers were terminated in February 1984 and that of others in January 1984. In that view of the matter, it was observed by the Honourable Apex Court that the services of the appellants have been terminated, they will not be eligible for regularization under the Amended Rules of 1984. It was also observed that those, who are not in service, cannot be regularized.
(iv) Oshiar Prasad and Others v. Employers in relation to Management of Suidmdih Coal Washery of
M/s.Bharat Coking Coal Limited, Dhanbad, Jharkhand reported in (2015) 4 SCC 71, wherein it is observed as under:-
"23. Coming now to the facts of this case, it is an admitted case that the services of the appellants and those at whose instance the reference was made were terminated long back prior to making of the reference. These workers were, therefore, not in the services of either Contractor or/and BCCL on the date of making the Page 9 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 reference in question. Therefore, there was no industrial dispute that "existed" or "apprehended" in relation to appellants' absorption in the services of the BCCL on the date of making the reference.
24. Indeed a dispute regarding the appellants' absorption was capable of being referred to in reference for adjudication, had the appellants been in the services of Contractor or/and BCCL. But as said above, since the appellants' services were discontinued or/and retrenched (whether rightly or wrongly) long back, the question of their absorption or regularization in the services of BCCL, as claimed by them, did not arise and nor this issue could have been gone into on its merits for the reason that it was not legally possible to give any direction to absorb/regularize the appellants so long as they were not in the employment.
25. It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination.Page 10 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022
C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022
26. In our considered opinion, the only industrial dispute, which existed for being referred to the Industrial Tribunal for adjudication was in relation to termination of appellants' employment and - whether it was legal or not? It is an admitted fact that it was not referred to the Tribunal and, therefore, it attained finality against the appellants.
27. In our considered opinion, therefore, the reference, even if made to examine the issue of absorption of the appellants in the services of BCCL, the same was misconceived."
6. On the other hand, Mr.Rajesh Mankad, learned advocate for the petitioner of Special Civil Application No.1855 of 2001 submitted that the the workmen have the right to payment under Voluntary Separation Scheme at par with other similarly situated permanent and regular employees of the respondent. It is submitted that the action of the respondent of refusing to even offer such a scheme to the concerned workmen despite the fact that the concerned workmen have become permanent and regular workmen of the respondent by virtue of the award of the Industrial Tribunal, is therefore, absolutely discriminatory and violative of the Article 14 of the Constitution of India. He also submitted that the concerned employees are eligible and entitled to claim the benefits under the voluntary separation scheme and refusal to extend aforesaid benefits to the concerned workmen is clearly a hostile discrimination.
Page 11 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 6.1 Learned advocate Mr.Mankad further submitted that present petition is filed in the month of April, 2001 challenging the impugned order at Annexure - A to the petition, which is passed by the Labour Court on 12-3-1999 i.e. after about two years' time from the date of impugned order. Further, the petition has been moved for hearing after filing the same in April, 2001, in March, 2002 i.e. after further one year. Thus, the present petition suffers from delay and latches and on this ground alone, present petition requires to be rejected. He further submitted that the petitioner Society has been ordered to be wound up by order of Registrar of Co-Operative Society (Central) in the month of April, 2001 and Liquidator one Shri C. K. Desai has been appointed. He, therefore, submitted that once the Society is ordered to be wound up and Liquidator is appointed, only Liquidator can file the proceedings on bahalf of the Society and therefore also present petition filed by Petrofils Co-operative Ltd. is not maintainable and it requires to be rejected in limine. He also submitted that without prejudice to the above, the petitioner has challenged the order passed by the Presiding Officer which has been passed after full fledged trial where both petitioner and respondent have participated. It is denied that there was no employee employer relation existed and that concerned workmen were not entitled to regularization, as claimed. It is submitted that learned Tribunal has come to just, fair and legal conclusion that in the facts and circumstances of the case, concerned 160 workmen were entitled to regularization and consequential benefits.
Page 12 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 6.2 Learned advocate, Mr.Mankad, while referring to the written submissions, has further submitted that one of the points raised by the petitioner that no reference made by appropriate Government is concerned, the same cannot be accepted at this stage, as preliminary objection raised by the petitioner is considered by the learned Tribunal and it was decided against the petitioner and, thereafter, the petitioner has participated in the reference proceedings and award on merits has been passed. He has submitted that thus raising the ground at this stage regarding non-reference by appropriate Government is nothing but an unfair labour practice and delay tactics. Mr.Mankad has relied upon following decisions to submit that, in the facts of present case, appropriate Government would be State Government and not the Central Government as has been alleged and contended by the petitioner.
(i) M/s.Hindustan Aeronautics Limited v. Workmen reported in (1975) 4 SCC 679, wherein it is observed as under:-
"2. The competency of the Government of West Bengal to make the reference was challenged before the Tribunal as also here. Mr. V. S. Desai, learned counsel for the appellant, submitted that the appropriate government within the meaning of section 2 (a) of the Act competent to make the reference was the Central Government, or, if a State Government, it was the Government of Karnataka where the Bangalore Divisional Page 13 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 office of the Company is situated and under which works the Barrackpore branch. Counsel stressed the point that the Central Government owned the entire bundle of shares in the company. It appoints and removes the Board of Directors as well as the Chairman and the Managing Director. All matters of importance are reserved for the decision of the President of India and ultimately executed ill accordance with his directions. The memorandum and articles of association of the company unmistakably point out the vital role and control of the Central Government in the matter of carrying on of the industry owned by the appellant. Hence, counsel submitted that the industrial dispute in question concerned an industry which was carried on "under the authority of the Central Government" within the meaning of section 2(a) (i) of the Act and the Central Government was the only appropriate Government to make the reference under section 10. The submission so made was identical to the one made before and repelled by this Court in the case of Heavy Engineering Mazdoor Union v. The State of Bihar & ors.(1) wherein it has been said at page 1,000) "It is true that besides the Central Government having contributed the entire share capital, extensive powers are conferred on it, including the power to give directions as to how the company should function, the power to appoint directors`and even the power to determine the wages and Page 14 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 salaries payable by the company to its employees. But these powers are derived from the company's memorandum of association and the articles of association and not by reason of the company being the agent of the Central Government. The question whether a corporation is an agent of the State must depend on the facts of each case. Where a statute setting up a corporation so provides, such a corporation can easily be identified as the agent of the State as in Graham v Public Works commissioners-(1901) 2 K.B. 781 where - Phillimore, J. said that the Crown does in certain cases establish with the consent of Parliament certain officials or hodies who are to be treated as agents of the Crown even though they have the power of contracting as principals. In the absence of a statutory provision, however. a commercial corporation acting on its own balefully even though it is controlled wholly or partially by a Government department. will be ordinarily presumed not to be a servant or agent of the State. The fact that a minister appoints the members or directors of a corporation and he is entitled to call for information, to give directions which are binding on the directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the Government. (see the State Trading Corporation of India Ltd v. The Commercial Tax officer. Visakhapatnam)-(1964) 4 S.C.R. 99 at Page 15 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022
188) per Shah J. and Tamlin v. Hannaford-(1950)1 K.B. 18 at 25, 26. Such an inference that the corporation is the agent of the Government may be drawn where it is performing in substance govern mental and not commercial functions. (cf. London Country Territorial and Auxiliary Forces Association v. Michale)- (1948) 2 All. E.R. 432."
3. Mr. Desai made a futile and unsubstantial attempt to distinguish the case of Heavy Engineering Mazdoor Union on the ground that was the case of a Government company carrying on an industry where Private Sector. Undertakings were also operating It was not an industry, as in the instant case, which the Government alone was entitled to carry on to the exception of the private operators. The distinction so made is of no consequence and does not affect the ratio of the case in the least We may also add that by amendments in the definition of appropriate Government" in section 2(a)(i) from time to time certain statutory corporations were incorporated in the definition to make the Central Government an appropriate Government in relation to the industry carried on by them. But no public company even if the shares were exclusively owned by the Government was attempted to be roped in the said definition.
4. The other leg of the argument to challenge the competency of the West Bengal Government to make the reference is also fruitless. It may be assumed that the Barrackpore branch was under the control of the Page 16 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 Bangalore division of the company. Yet it was a separate branch engaged in an industry of repairs of air crafts or the like at Barrackpore. For the purpose of the Act and on the facts of this case the Barrackpore branch was an industry carried on by the company as a separate unit. The workers were receiving their pay packages at Barrackpore and were under the control of the officers of the company stationed there. If there was any disturbance of industrial peace at Barrackpore where a considerable number of workmen were working the appropriate government concerned in the maintenance of the industrial peace was the West Bengal Government. The grievances of the workmen of Barrackpore were their own and the cause of action in relation to the industrial dispute in question arose there. The reference. therefore, for adjudication of such a dispute by the Governor of West Bengal was good and valid. The facts of the case of M/s Lipton Limited and another v. Their employees(1) cited on behalf of the appellant are clearly distinguishable. The ratio of that case was pressed into service in vain on behalf of the appellant."
(ii) Delhi Internationl Airport Private Limited v. Union of India and Others reported in (2011) 12 SCC 449. In the said case, question raised was relating to the Contract Labour (Regulation and Abolition) Act, 1970, in respect of abolition of contract labour and whether Central Government is appropriate Government under Section 10 (1) of the Industrial Page 17 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 Disputes Act, 1947 in relation to the Notification issued under the Contract Labour (Regulation and Abolition) Act, 1970. After considering various aspects, it was held by the Apex Court that the Central Government is appropriate Government.
(iii) Bharat Cooperative Bank (Mumbai) Ltd. v. Cooperative Bank Employees Union reported in 2007 (4) SCC 685, wherein it is observed as under:-
"22. Section 2(bb) of the ID Act as initially introduced by Act 54 of 1949 used the word "means.. and includes" and was confined to a "Banking Company" as defined in Section 5 of the Banking Companies Act, 1949, having branches or other establishments in more than one province and includes Imperial Bank of India. Similarly, Section 2(kk), which was also introduced by Act 54 of 1949, defines Insurance Company as "an Insurance Company defined in Section 2 of the Insurance Act, 1938 (IV of 1938), having branches or other establishments in more than one province". It is trite to say that when in the definition clause given in any statute the word "means" is used, what follows is intended to speak exhaustively. When the phrase "means" is used in the definition, to borrow the words of Lord Esher M.R. in Gough vs. Gough , it is a "hard and fast" definition and no meaning other than that which is put in the definition can be assigned to the same. (Also see: P. Kasilingam and Ors. vs. P.S.G. College of Technology and others ). On the other hand, when the word "includes" is used in the definition, the Page 18 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 legislature does not intend to restrict the definition; makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise. Therefore, the use of the word "means" followed by the word "includes" in Section 2(bb) of the ID Act is clearly indicative of the legislative intent to make the definition exhaustive and would cover only those banking companies which fall within the purview of the definition and no other.
23. Moreover, Section 2(bb) has subsequently been amended from time to time by various amendments to include certain specified banks and institutions, which would otherwise not fall within the exhaustive definition of the "Banking Company" in Section 2(bb) read with Section 5(c), 5(b) and 5(d) of the BR Act. It is plain that if the Parliament had intended an expansive interpretation of the original words, then there would have been no reason whatsoever to keep amending the definition from time to time. In our view, therefore, the language of Section 2(bb) clearly demonstrates the legislative intent not to bring within its ambit all the banks transacting the business of banking in India.
24. We are, therefore, of the opinion that introduction of the Banking Companies Act, 1949 in clause (bb) of Section 2 of the ID Act is a case of incorporation by reference; it has become its integral part and therefore, subsequent amendments in the BR Act would not have any effect on Page 19 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 the expression "Banking Company" as defined in the said Section.
25. At this juncture, we may also consider an alternative submission made on behalf of the Bank that even if it is assumed that the provisions of Section 5 of the BR Act were introduced into Section 2(bb) of the ID Act by way of legislative incorporation, two of the exceptions, namely, exceptions (c) and (d), carved out by this Court in State of Madhya Pradesh vs. M.V. Narasimhan and reiterated in P.C. Agarwala's case (supra), would apply in the instant case. The exceptions so enumerated are:
(a) Where the subsequent Act and the previous Act are supplemental to each other;
(b) Where the two Acts are in pari materia;
(c) Where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and
(d) Where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act.
26. In our view, there is no substance in the contention. The ID Act is a complete and self contained Code in itself and its working is not dependant on the BR Act. It could not also be said that the amendments in the BR Act either expressly or by necessary intendment applied to the ID Act. We, therefore, reject the contention Page 20 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 advanced by learned counsel for the appellant on this aspect as well.
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29. For all these reasons, we have no hesitation in upholding the view taken by the High Court that for the purpose of deciding as to which is the "appropriate government", within the meaning of Section 2(a) of the ID Act, the definition of the "Banking Company" will have to be read as it existed on the date of insertion of Section 2(bb) and so read, the "appropriate government" in relation to a multi-state co-operative bank, carrying on business in more than one state, would be the State Government."
(iv) Gujarat Mazdoor Sabha v. State of Gujarat reported in 2003 (2) GLH 120, wherein it is observed as under:-
"7. In light of aforesaid discussion of the present facts, it becomes clear that the IFFCO is neither an industry carried on by the Central Government nor it is an industry carried on under the authority of the Central Government nor it is named in the list of control industry as specified in this behalf by the Central Government nor it is any one of the industries mentioned in the definition of 'appropriate Government'. It, therefore, safely be said that with regard to IFFCO it is the State Government, which is 'appropriate Government'. So far IFFCO is concerned, its counsel Mr. Nanavati has not advanced Page 21 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 any submission based on facts to persuade me to hold that the Central Government is the 'appropriate Government' in respect of IFFCO.
7.1 Incidentally it may be mentioned here that in the SAIL's case, the A.S.G. appearing for the IFFCO, which also was before the Apex Court as a party in one of the petitions, conceded the position that for IFFCO 'appropriate Government' is the State Government."
6.3 Mr.Mankad has also submitted that after considering the facts of the case, learned Tribunal has rightly passed impugned award, which does not require any interference by this Court. He has also submitted that other case came to be withdrawn as the workmen were taken into service. He has also submitted that original reference was made for 160 workers. During the pendency thereof, 95 workers were terminated and remaining 65 workers were in employment throughout. He has also submitted that the workers were taken back and their services are regularized and continued. He has further submitted that in the meantime, the society went into liquidation and the Liquidator is appointed. He also submitted that Special Civil Application No.3105 of 2002 came to be filed after the society went into liquidation. He has further submitted that withdrawal of other case would not have any effect upon the impugned award passed by the Labour Court. In his written submissions, he has referred to factual aspects of the matter and has submitted to reject Special Civil Application No.3105 of 2002 by confirming award dated 12.3.1999 published on 15.3.1999 by the Industrial Tribunal in Reference Page 22 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 (IT) No.26 of 1992 in its entirety and to allow the petition being Special Civil Application No.1855 of 2001 preferred by the workmen and to direct the Liquidator to immediately call and decide the claims of the workers registered as Claim No.2448 on 9.8.2004 and disburse the amount of claim within time bound schedule. In addition to the decisions referred to herein above, he has also relied upon following decisions:-
(i) Steel Authority of India Limited v. Gujarat Mazdoor Panchayat reported in 2004 (1) GLR 729. The facts of that case are that Gujarat Mazdoor Panchayat filed writ petition with a prayer to declare that the workman employed in the stockyard located at Kaligam, Sabarmati, Ahmedabad, are entitled to salary, dearness allowance and other benefits as per rules and regulations of SAIL. The case of the petitioner was that they were being working for unloading materials arriving by rail or road, sorting them, taking it in the yard and loading same in the trucks brought by the customers when sale is effected and they are all working since many years and they are workers of SAIL. The case of SAIL was that the petitioners were not its workers but they were workers of the contractor and there was no relationship of employer-
employee between SAIL and workers. Considering the material placed on record, it was held that the petitioners were workers of SAIL and SAIL was directed to absorb them and to pay requisite salaries by learned Single Judge. The same came to be challenged before Division Bench of the High Court. After perusing the evidence on record, ultimately, Division Bench has upheld the decision of learned Single Judge and rejected Page 23 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 the appeal filed by SAIL. There was only question as to whether employees-workers were workers of the contractor or of SAIL. No dispute regarding jurisdiction of Labour Court was raised by SAIL in that case.
(ii) Hari Nandan Prasad v. Employer I.R. to Management of FCI reported in 2014 (7) SCC 190. In that case, there was termination of service of casual daily wagers. They approached the Central Government-cum-Industrial Tribunal alleging wrongful termination. The Tribunal held termination as illegal and they were directed to be reinstated with 50% backwages and also ordered for regularization of their services. Learned Single Judge upheld said decision. Division Bench held violation of Section 25 of Industrial Disputes Act but denied reinstatement as both were strictly temporary workers. This order of the Division Bench came to be challenged before the Apex Court, wherein the Apex Court set aside the decision of the Division Bench and has upheld the order of learned Single Judge as well as that of the Industrial Tribunal on the ground that circular was issued regularization was given to other similarly situated persons and it was further observed that the benefit of said Circular is also applicable to both the workers for regularization.
(iii) R.G.N. Price, Official Liquidator of Andhra Pradesh Paper Mills Company Limited (in Liquidation) v. M.Chandrashekharan, President of the Andhra Paper Mills Workers Union reported in AIR 1951 Madras 987, wherein it is held as under:-
Page 24 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 "8. Mr. Narasimha Aiyar sought to attack the award on its merits. He was unable to cite any authority to justify such a course. Section 15 Sub-section (4) of the Industrial Disputes Act expressly enacts that an award declared to be binding under Section 15 shall not be called in question in any manner. Apart from this provision, we think that the Official Liquidator cannot be permitted to examine the correctness of the adjudication of the Industrial Tribunal or a reference to which the company was a party represented by the debenture trustees, when there is no allegation of fraud or collusion.
No doubt the Official Liquidator can refuse to accept a debt, though it is the subject of a decree against the insolvent if there is evidence that the decree was fraudulently and collusively obtained and there was no real debt at all. But in the absence of fraud and collusion, or apparent miscarriage of justice, the Official Liquida-:
tor would have no power to go behind the decrees and adjudications of competent Courts and tribunals. It is sufficient to cite the following observations of Lord Esher, M. R. in 'In re Flatau, Ex parte Scotch Whisky Distillers', (1889) 22 Q. B. D. 83 at p. 85 :
"It is not necessary now to repeat that, when an issue has been determined in any other Court, if evidence is brought before the Court of Bankruptcy of circumstances tending to show that there has been fraud, or collusion, or miscarriage of justice, Page 25 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 the Court of Bankruptcy has power to go behind the judgment and to inquire into the validity of the debt. But that the Court of Bankruptcy is bound in every case as a matter of course to go behind a judgment is a preposterous proposition."
We therefore did not allow Mr . Narasimha Aiyar to attack the correctness of the findings arrived at by the Industrial Tribunal. We may also mention that, having gone through the award, we are convinced that there has been no miscarriage of justice. At the most Mr. Narasimha Aiyar's contention would come to this, viz., that the Tribunal erred in law, but every error of law would not result in miscarriage of justice."
7. Heard learned advocates appearing for both the sides and considered the material placed on record as well as the decisions cited at bar. The legal question raised by the Petrofils Cooperative Limited is regarding "appropriate government". According to it, the Central Government is the "appropriate government" and reference made by the State Government is not maintainable. Both the sides have referred to various decisions, which have already been referred to herein above. Before considering the issue, it would be appropriate to reproduce the definition of "appropriate Government" as provided in Section 2 (a) of the Industrial Disputes Act, 1947.
Section 2(a)
(a) " appropriate Government" means--
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(i) in relation to any industrial dispute concerning 4 any industry carried on by or under the authority of the Central Government, 5 or by a railway company 6 or concerning any such controlled industry as may be specified in this behalf by the Central Government] 7 or in relation to an industrial dispute concerning [ a Dock Labour Board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1940 ), or the Industrial Finance Corporation of India formed and registered under the Companies Act, 1956 (1 of 1956) or the Employees' State Insurance Corporation established under section 3 of the Employees' State Insurance Act, 1948 (34 of 1948 ), or the Board of Trustees constituted under section 3A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 (46 of 1948 ), or the Central Board of Trustees and the State Boards of Trustees constituted under section 5A and section 5B, respectively, of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952 ), or the" Indian Airlines"
and" Air India" Corporations established under section 3 of the Air Corporations Act, 1953 (27 of 1953 ), or the Life Insurance Corporation of India established under section 3 of the Life Insurance Corporation Act, 1956 (31 of 1956 ), or the Oil and Natural Gas Commission established under section 3 of the Oil and Natural Gas Commission Act, 1959 (43 of 1959 ), or the Deposit Insurance and Credit Guarantee Corporation established under section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, Page 27 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 1961 (47 of 1961 ), or the Central Warehousing Corporation established under section 3 of the Warehousing Corporations Act, 1962 (58 of 1962 ), or the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963 (52 of 1963 ), or the Food Corporation of India established under section 3, or a Board of Management established for two or more contiguous States under section 16, of the Food Corporations Act, 1964 (37 of 1964 ), or the International Airports Authority of India constituted under section 3 of the International Airports Authority of India Act, 1971 (48 of 1971 ), or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976 ), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India [ the National Housing Bank established under section 3 of the National Housing Bnak Act, 1987 (53 of 1987 ) or] a banking or an insurance company, a mine, an oil- field], a Cantonment Board,] or a major port, the Central Government, and
(ii) in relation to any other industrial dispute, the State public sector undertaking, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the State Government, the State Government:
Provided that in case of a dispute between a contractor and the contract labour employed through the contractor in any industrial establishment where such dispute first arose, the appropriate Government shall be the Central Government or the State Government, as the case may be, which has control over such industrial establishment."Page 28 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022
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8. At this juncture, it is worthwhile to refer to the decision of the Apex Court in the case of Tata Memorial Hospital Workers Union v. Tata Memorial Centre and Another reported in AIR 2010 SC 2943, wherein three Judges Bench of the Supreme Court, while referring to various decisions, observed in paragraph 45, 46, 47, 48, 49 and 60 as under:-
"45. Tests emerging for determining whether the industry is carried on under the authority of the Central Government or the State Government Having seen the statutory framework it is clear that when it comes to an industry governed under the Industrial Disputes Act 1947, to be covered under the MRTU and PULP Act, the State Government has to be the `appropriate government' in relation to any industrial dispute concerning such industry. As provided in Section 2 (3) of the MRTU and PULP Act, we have to fall back on the definitions of `industry' and `appropriate government' under the Industrial Disputes Act 1947. As per the scheme of Section 2 (a) of the Industrial Disputes Act, for the industrial disputes concerning the industries specified in sub-section (i), and for the industries which are carried on by or under the authority of the Central Government, the Central Government is the appropriate government. Section 2 (a) (ii) provides that `in relation to any other industrial dispute' the State Government is the `appropriate government'. Therefore in an industrial disputes concerning industries, other than specified industries it becomes necessary to examine whether the Page 29 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 industry is carried on by or under the authority of the Central Government. When it does not fall under either of the two categories, the State Government will be the appropriate government.
46. It is also material to note that this exercise is to be done basically in the context of an industrial dispute to find out as to whether in relation to any industrial dispute concerning that industry, Central Government is the `appropriate government' or the State Government is the `appropriate government'. Oxford dictionary defines word `concerning' as `involving' or `about'. The word `concerning', according to Webster's Dictionary means `relating to', `regarding' or `respecting' proximate, intimate and real connection with the establishment. It is to be noted that the Industrial Dispute Act is an act for investigation and settlement of industrial disputes and the MRTP and PULP Act 1971 is for recognition of trade unions for facilitating collective bargaining for certain undertakings with which we are concerned in the present matter, and for prevention of certain unfair practices amongst other objectives. This being the position it is to be noted that the examination of the issue as to which government is the `appropriate government' is to be carried out in this context.
47. As far as an industry `carried on by the Central Government' is concerned, there need not be much controversy inasmuch as it would mean the industries such as the Railways or Post and Telegraph, which are carried on departmentally by the Central Government Page 30 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 itself. The difficulty arises while deciding the industry which is carried on, not by but `under the authority of the Central Government'. Now, as has been noted above, in the Constitution Bench Judgment in Steel Authority of India Limited (supra), the approach of the different Benches in four earlier judgments has been specifically approved and the view expressed in Air India (supra) has been disagreed with. The phrase `under the authority' has been interpreted in Heavy Engineering (Supra), to mean `pursuant to the authority' such as where an agent or servant acts under authority of his principal or master. That obviously cannot be said of a company incorporated under the Companies Act, as laid down in Heavy Engineering Mazdoor Union case (supra). However, where a statute setting up a corporation so provides specifically, it can easily be identified as an agent of the State. The Judgment in Heavy Engineering Mazdoor Sangh observed that the inference that a corporation was an agent of the Government might also be drawn where it was performing in substance governmental and non commercial function. The Constitution Bench in Steel Authority case (supra) has disagreed with this view in para 41 of its judgment. Hence, even a corporation which is carrying on commercial activities can also be an agent of the state in a given situation. Heavy Engineering Judgment is otherwise completely approved wherein, it is made clear that the fact that the members or directors of corporation and he is entitled to call for information, to give directions regarding functioning which are binding Page 31 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 on the directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the Government. The fact that entire capital is contributed by the Central Government and wages and salaries are determined by it, was also held to be not relevant.
48. In Hindustan Aeronautics the fact that the industrial dispute had arisen in West Bengal and that the `appropriate government' in the instant case for maintaining industrial peace was West Bengal was held to be relevant for the Governor of West Bengal to refer the dispute for adjudication. In Rashtriya Mill Mazdoor case the fact that the authorized controller was appointed by the Central Government to supervise the undertaking was, held as not making any difference. The fact that he was to work under the directions of the Central Government was held not to render the industrial undertaking an agent of the Central Government.
49. In Food Corporation of India (supra), inspite of the fact that FCI is a specified industry under Section 2 (i) (a) of the ID Act 1947, this Court considered the definition of `appropriate government' in CLRA Act 1970, and the State Governments were held to be the `appropriate governments' for the regional offices and the warehouses situated in various states wherein the demand for regularization of the services under the CLRA Act had arisen.
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60. Besides, as observed in Heavy Engineering Mazdoor Union Case (supra), if we look to the definition of `employer' under the Industrial Disputes Act, in a case where an industry is carried on by or under the authority of the Government, the employer is defined as the authority prescribed in this behalf or Head of the Department. In the instant case, no such authority has been prescribed, nor any head of the department notified by the Central Government. On the contrary, right from the time the society was created, its administration and management is completely under its Governing Council and it is functioning independently. ..................."
9. Considering aforesaid decision and the factual aspects of the case, it clearly transpires that the petitioner-Petrofils Cooperative Limited cannot be treated as authority under the control of the Central Government. There is no iota of evidence to suggest that the Central Government was controlling entire activity of the Petrofils Cooperative Limited. As per the decision of the Apex Court in the case of Food Corporation of India (AIR 1985 SC 488), as the petitioner is carrying out its business activities in the State of Gujarat, and the dispute has arisen between the employer and the employees in the State of Gujarat, the State Government would be "appropriate government". It also appears from record that appointments to various posts of Petrofils Cooperative Limited are not being made by Head of the Department of concerned Ministry of the Central Government. The engagement of workers and servants Page 33 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 of the petitioner is by the Petrofils Cooperative Limited itself. Therefore, considering facts of the present case, it clearly appears that since industrial dispute has arisen in the State of Gujarat, reference by the concerned labour authorities to the Industrial Tribunal is legally sustainable.
10. Now, the only question, which needs to be decided is as to whether the impugned award passed by learned Tribunal in Reference (IT) No.26 of 1992 is sustainable in the eyes of law or not. From the impugned award, which is at page 29, in Special Civil Application No.3105 of 2002, it appears that as per the reference made by the Deputy Labour Commissioner, Baroda, reference came to be registered. The question was raised regarding eligibility of workers to be made permanent, who have completed one year service as casual labourer. The question was whether in all 160 workers of Petrofils Cooperative Limited are entitled to be made permanent or not. It appears that the Industrial Tribunal has considered the pleadings of both the sides and considered the point raised by the company that 160 workers are the workers of the contractor and, therefore, they are not workers of the company. There was also a pleading of the company that other labourers have also filed dispute before the Labour Court being Reference No.466 of 1996 and 96 of 99. The company has also raised point that there was no relationship of employer- employee between the parties.
11. It appears from the award that the workers have filed their reply to the contention of the company regarding Page 34 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 pendency of other labour matters and have stated that those matters are regarding retrenchment of 95 workers, whereas present case is pursuant to their demand of regularization and permanency. It is also contended that the company has already made 22 employees permanent and others were also being transferred to other branch. It is the stand of the company that persons, who have been transferred to other units were selected after due process.
12. After perusal of the material placed on record, which included the appointment letters of certain workers and oral evidence of both the sides, learned Tribunal has ultimately directed the company to make the workers permanent, who are serving in the company since 1.1.1996. It was also observed that the persons, who are already removed from service during the pendency of the matter are not entitled to get any benefit from the award. It appears that while passing the impugned award, the Tribunal has observed in paragraph 11 that an industrial dispute is pending before the Labour Court in relation to other persons, whose services are already terminated. It is observed therein that case of such workers may be considered on their reinstatement, that too with effect from 1.1.1996. It appears that the Tribunal has relied upon the assertions made on behalf of the witness examined by the company, wherein it has been stated that many workers have been made permanent by the company and many have been transferred after making them permanent. It is also observed that no documentary evidence has been produced by the company regarding presence-sheet and salary sheet. It has Page 35 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 relied upon the assertion made by the witness of the company that when the regular employees of the company went on strike, entire factory was run by these workers and have performed their duties as was done by regular employees. It is also observed that though there is a stand by the company that certain workers were made permanent and transferred after regular interview, no documentary evidence has been produced by the company and, therefore, it is observed by the Tribunal that it is only paper work. It is also observed that it is an undisputed fact that workers are Class-4 labourers and they are serving since many years in the Petrofils Cooperative Limited. It is also observed that as they were not made permanent, some of them demanded permanency and, therefore, out of them 95 workers were retrenched, who have filed their separate case before Labour Court being Reference No.466 of 1996 and 26 of 1992. It is observed that present matter is pertaining to regularization and permanency and it is not with regard to reinstatement of the persons, who are terminated. It is also observed that out of 160 workers, 24 workers have been made permanent by the management and they have been transferred to Valiya Unit and they were made permanent within one or two years of their service, soon after taking simple applications from them. It is also observed that other 21 workers were also made permanent, ten were also being treated as permanent and 45 workers have also been made permanent. While relying upon the decisions of various High Courts and the Supreme Court, ultimately, the impugned award has been passed by the Tribunal.
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13. On perusal of the material placed on record, it clearly transpires that the Tribunal has not committed any error of facts and law in passing the impugned award. The same is sustainable in the eyes of law. Therefore, the petition filed by Petrofils Cooperative Limited deserves to be dismissed.
14. So far as petition filed by the Rashtriya Mazdoor Union is concerned, it appears that in addition to the benefits granted by the Tribunal in the impugned award in Reference (IT) No.26 of 1992, they have also sought for other reliefs regarding regularization of 53 other workers and also for giving permanency and extending the benefit of voluntary separation scheme to them. It is pertinent to note that the petitioner has heavily relied upon award passed by the Labour Court in Reference (IT) No.26 of 1992, however, there is nothing on record to suggest that by the impugned award the Tribunal has granted any further relief of giving any benefit of voluntary separation scheme. Admittedly, when the petitioners are terming themselves as workers of the company and they are well aware that if the dispute arise between the employer and employee, then they have to approach the Labour Court first. Admittedly, in the present case, they have sought for further relief, which was not the subject matter of award dated 12.3.1999 passed by the Industrial Tribunal in Reference (IT) No.26 of 1992. Therefore, in the considered opinion of this Court, present petition filed under Article 226 of the Constitution of India for further and additional reliefs, which were not granted by the Tribunal, is not tenable in the eyes of law. If they have any grievance of not getting other benefits, Page 37 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022 C/SCA/1855/2001 JUDGMENT DATED: 25/11/2022 which were not given by the company, first of all they have to approach concerned Labour Court or Industrial Tribunal for their grievances. Therefore, though their prayer regarding implementation of award dated 12.3.1999 passed by Industrial Tribunal in Reference (IT) No.26 of 1992 deserves to be granted, at the same time, other prayers deserve to be rejected.
15. In view of above discussion, Special Civil Application No.1855 of 2001 deserved to be partly allowed, whereas Special Civil Application No.3105 of 2022 deserves to be dismissed. Hence, following order is passed:-
16. Special Civil Application No.1855 of 2001 is partly allowed. Respondents are hereby directed to implement award dated 12.3.1999 passed by Industrial Tribunal in Reference (IT) No.26 of 1992. Rest of the prayers of the petitioners are rejected. Rule is made absolute to the above extent. No order as to costs.
17. Special Civil Application No.3105 of 2002 stands dismissed. Rule is discharged. No order as to costs.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 38 of 38 Downloaded on : Sat Dec 24 00:02:17 IST 2022